Blanket Rules Aren’t Justice. They’re Laziness.
The Scottish government is defending a principle that shouldn’t be controversial: that every person deserves to be treated as an individual
The Scottish government is heading to court next month to defend a simple principle: that every prisoner deserves individual assessment, not automatic categorisation based on a single characteristic.
For Women Scotland is challenging prison guidance that allows case-by-case decisions about where transgender prisoners are housed, and their argument is that biology should be the sole determining factor with no exceptions whatsoever.
The Scottish government’s response cuts to the heart of what equality law actually says, and perhaps more importantly, what it doesn’t say.
What the law actually requires
Here’s something that might surprise you: the 2010 Equality Act doesn’t mandate sex segregation in prisons, because it’s designed to allow individuals to bring discrimination claims rather than to create inflexible institutional rules.
The government’s legal argument makes a compelling point, because if biology were truly the only factor that mattered, what would happen with trans men? Should someone who has lived as a man for years, who has a masculine appearance, be placed in a women’s prison simply because of their birth certificate?
The campaigners presumably wouldn’t support that either, which rather undermines the claim that biology alone should decide everything.
The real question
First Minister John Swinney put it plainly when he said that ministers “must wrestle with complex issues and make difficult decisions which balance and reflect the interests and rights of individuals.”
That’s not dodging the issue, that’s acknowledging reality, because human beings are complex and situations are complex and justice requires looking at actual circumstances rather than applying one-size-fits-all rules and calling it a day.
A note on “taxpayer money”
Scottish Conservative MSP Tess White called this legal defence “shocking” and a waste of taxpayer money, and I’ll tell you what I find genuinely shocking: elected officials publicly suggesting that defending the legal rights of a marginalised group isn’t worth the expense.
Trans people are human beings, they are our neighbours and our colleagues and our family members, and their rights deserve legal protection just like everyone else’s. The suggestion that standing up for vulnerable people is somehow frivolous says far more about the speaker than the policy, and we don’t get to pick and choose whose human rights are worth defending because that’s simply not how equality works.
The bigger picture
This case isn’t really about prisons, it’s about whether we believe in individualised justice or categorical thinking, and whether we trust trained professionals to make nuanced decisions or demand rigid rules that will inevitably fail the people who need compassion most.
The Scottish government is arguing for something deeply reasonable: assess each situation on its merits, consider all relevant factors, and protect everyone’s dignity and safety.
That’s not radical, that’s just treating people like people, and honestly that shouldn’t be controversial.
The Court of Session hearing begins 3rd February.
What do you think? I’d love to hear your thoughts in the comments below, and if this resonated with you, please do share it with others who might find it useful.